Bhagabati Prosad Banerjee, J.
1. This is an application for stay of operation of the order passed by the learned trial Judge on November 12, 1993 by which the learned trial Judge passed an interim order staying the impugned orders of transfer of the writ petitioners/respondents from the Presidency Jail to other Jail. The learned trial Judge also passed an order directing the Inspector General of Prisons, West Bengal and the Superintendent, Presidency Jail, Alipore being the appellant/petitioner Nos. 2 and 3 in the above appeal (respondents in the writ petition) to transfer two undertrial accused persons, namely, Pannalal Jaysoara and Md. Gulzar from Presidency Jail to Dum Dum Central Jail. The said interim order passed pending disposal of the writ application.
2. The cases were argued by the learned Counsels for both the Parties at length. In order to appreciate the case made by the learned Counsel for both the parties it is necessary to set out some of the facts.
3. The two accused persons, namely, Pannalal Jaysoara and Md. Gulzar, were tried before the TADA Court and they were under-trial prisoners. It appears that the said case was started in the context of Bowbazar Bomb Blast case which is stated, to be one of the worst type of Bomb Blast in the City of Calcutta taking away several lives and blowing off several houses which occurred sometime past. The said two accused persons it appears made confessional statements recorded under Section 164 of the Code of Criminal Procedure on April 7, 1993 and May 19, 1993 respectively. There are other ascused persons in that case. It is not necessary to go into the details of this case.
4. The writ petitioner/opposite party Sk. Isha Ali, who was a Warder in the Presidency Jail, was transferred by the order, dated November 5, 1993 from the Presidency Jail at Alipore to Howrah District Jail in the interest of Public service. The said order was passed by the Superintendent, Presidency Jail. Immediately thereafter the writ petitioner filed a writ application before this Court on November 10, 1993 whereupon the learned trial Judge directed the appellants herein to produce the entire records in connection with the order of transfer of the writ petitioner as well as Jail Gate Register, Jail Gate Warder Register from the month of July to October, 1993 of Presidency Jail. On November 12, 1993 an interim order was passed by the learned trial Judge in which the learned trial Judge had taken note of iseveral facts as stated in the writ application and not only stayed the order of transfer, also transferred the said two accused person, namely, Pannalal Jaysoara and Md. Gulzar from Alipore Presidency Jail to Dum Dum Central Jail. It may be pointed out that the said two accused Pannalal and Gulzar were not parties in the writ application.
5. The writ application was filed challenging the validity of the order of transfer in question, making some allegation against the Deputy Commissioner of Police, Detective Department, Assistant Commissioner of Police, Detective Department as well as the Officer-in-Charge, Murder Squard, Lal Bazar Police Station. In the writ application it was stated that since July, 1993 some Officers of the Detective Department of Lalbazar headed by a Deputy Commissioner of Police, Detective Department, Lalbazar began to enter into the Presidency Jail, Alipore very often and at all hours in violation of all the norms, procedures and rules of the Jail Code and call the two undertrial prisoners, namely, Pannalal Jaysoara and Md. Gulzar who have' been in Presidency Jail as undertrial prisoners in connection with the Bowbazar Bomb Blast case from their cells inside the Jail. It was further alleged that the said Police Officers called the accused persons for the purpose of tutoring them and also threatening them and that nobody protested against those illegal actions of the police officers for entering inside the Jail without order from any Court or signing the Jail Gate Register except the Warders and employees of the Presidency Jail who raised protests before the Superintendent, Presidency Jail against such illegal actions of the Police which was it was alleged never happened in that Jail. It was stated in the writ petition that the Superintendent, Presinency Jail expressed his helplessness to prevent those actions of police on the plea that he had a criminal case pending against him under the control of Lalbazar Police for which he was unable to do anything in the matter. It was further stated that the writ petitioner/opposite party, who was a member of the Karakakshi Samity along with the other employees of the Presidency Jail had to protest against such illegal entries of such police officers inside the Presidency Jail. It was also alleged that the Superintendent of that Jail called the said two accused, namely, Pannalal Joysoara and Md. Gulzar in his office as dictated by the police officers of Lalbazar from time to time.
6. In paragraph 4 of the writ application it was stated by the writ petitioner-opposite party that the said two undertrial prisoners, namely, Pannalal and Gulzar, also ventilated their grievances against those police officers to all the employees of the Presidency Jail and further it was alleged that those two accused persons admitted to them that they were the Informers of police of Detective Department of Lalbazar for a long time and they were tutored by the Deputy Commissioner, Detective Department, the Assistant Commissioner of Police and the Officer-in-Charge, Murder Squad to make false statements implicating some innocent persons. It was also stated that those two accused persons stated to the writ petitioner that they did so on the assurance that they would be released soon and their families would be paid weekly allowance payable to them as informers of police but they have not been released as assured by the police and their families were not getting the said allowance.
7. Further allegation in the writ petition was that one Sri Rabindra Nath Chakravorti, an Advocate having instruction from the said two accused Pannalal and Gulzar prepared a statement retracting from their purported confessional statements and send the same to the Jail authority of the Presidency Jail for due execution by them after due attestation by the Jail authority and to send the same back to the said learned Advocate but the Jail authority illegally with-held the same at the instance of those Police Officers and was not returned to the said learned Advocate. It was also alleged that the Superintendent of Presidency Jail on receipt of the said typed statements from the said Sri Rabindra Nath Chakraborti, immediately contacted Lalbazar Police over phone and alleged that shortly thereafter several police officers from Lalbazar including those police officers rushed to the said Jail in Cars and entered into the Presidency Jail, Alipore freely in violation of all norms and procedures and called for two accused Pannalal and Md. Gulzar from their cells and asked them not to put their left thumb impressions on those petitions and on the contrary asked them to put their left thumb impressions on some blank papers produced by the said Police Officers and also offered them money, but it was stated that both Pannalal and Md. Gulzar refused the said offer of those Police Officers. There are other allegations in the writ application. It was stated in the writ application that as because the writ petitioners had raised their voice against the purported action of the police personnel, they were visited with the penal order of transfer.
8. The writ petition was filed in the nature of public interest litigation to vindicate the cause of the two accused persons as well as for the purpose of challenging the validity of the order of transfer in question in the same writ application.
9. Mr. Balai Chandra Roy, learned Counsel appearing for the appellants submitted that the writ application could not be entertained as public interest litigation in the facts and circumstances of the case and in view of the fact that private and personal interest cannot be allowed to assume the character of public interest litigation. Mr. Roy further submitted that in the application for stay the reasons for which the authority concerned was compelled to transfer the writ petitioner/opposite party from one Jail to other in the interest of public service has been clearly stated. It was also stated that the authority concerned on the basis of some report which highlighted some underhand relation and nexus between the respondent and main accused Rashid Khan, in Bowbazar Bomb Blast case the order of transfer had to be passed by the authority concerned. It was further stated that the writ petitioner/opposite party and other Jail Warders were not only threatening the said two accused Pannalal and Gulzar with dire consequences for making statements under Section 164 of the Code of Criminal Procedure before the learned Magistrate, but also pressed the said two accused to file a petition retracting the confessional statements. It was further submitted that Sri Rabindra Nath Chakraborty, learned Advocate approached to the Jail authority for obtaining signature of the two accused Pannalal and Gulzar on the vokalatnama and the type written statements retracting the confession which the said two accused refused to sign stating that they had not engaged the said lawyer nor instructed to prepare the same and accordingly the said typewritten statements were kept in the record in the said Presidency Jail. It was further stated that the two accused persons had not made any complaint to the Jail authority nor they were aggrieved by anything and on the contrary the said accused person filed a petition before the TADA Court complaining against the Writ petitioner and others. It was also stated that two other co-accused who were interfering and thereatening the said Pannalal Jaisoara and Md. Gulzar and were transferred from that Jail in order to avoid any further difficulty. After the said two others co-accused were transferred to some other Jails the writ petitioner/opposite party started thereatening and coercing the accused Pallalal and Md. Gulzar for retracing the confessional statement. It was stated that the said accused Pannalal and Md. Gulzar due to the threatening and harassment by the writ petitioner/opposite party (Warder in Presidency Jail) finding no other alternative filed a petition before the learned Magistrate of TADA Court praying for their protection.
10. Mr. Roy submitted that in the above back ground the impugned order of transfer was passed in the interest of public service and also for the purpose of maintaining discipline in the jail. It was further submitted by Mr. Roy that under such circumstances when the authority concerned has decided to transfer the said Warders from the Presidency Jail to some other Jail, it does not amount to any punishment, but it was necessary for the purpose of exigency of public service. It was further submitted that transfer is a condition of service and in this connection Mr. Roy relied on a decision of a Division Bench of Madras High Court in the case of The Chief Engineer (Personnel), Tamil Nadu Electricity Board v. K. Raman reported in : (1985)ILLJ164Mad . In this case a complaint with respect to theft of electrical energy from certain concern was made by the Chief Engineer. In course of investigation the police wanted certain meters with their seals for a cross-check. Despite instructions issued by the Board to the staff to make available to the police the meters, there was evasion by the latter. The police wrote to the Chief Engineer complaining of lack of co-operation by the Engineering staff impeding speedy investigation. In the course of the action that followed, the respondents authorities concerned were transferred and posted to other stations. The said transfer order was challenged and the learned trial Judge thereunder allowed the writ application holding that the transfer order was tainted by malice in law. On appeal by the Electricity Board the decision of the learned trial Judge was reversed. In that connection it was observed by the Division Bench of the Madras High Court in that case that the High Court exercising powers under Article 226 of the constitution has not exercising administrative supervision of the affairs of the Electricity Board and the Board knows how to administer its affairs. It cannot be gain said that transfer is an incidence of service. Transfer is not one of the punishments contemplated under the Rules by resorting to disciplinary proceedings. As a mater of fact, in every administration, day in and day out orders of transfer are passed on account of exigencies of administration. As to what such exigency is, the learned Juges did not think that the authority passing the order must be called upon to explain to the Court. If the administration finds that having regard to the complaints or allegations it is better a particular officer is removed from the particular worksport, transfer is ordered. Beyond that it does not visit the officer concerned with any penalty whatever, penalty not in the sense of disciplinary proceedings but from the point of view of emoluments, rank or status. If that be the position in law, where then is the necessity for the full exposure of the justifying factors for transfer before the Court. Relying upon this decision Mr. Roy, learned Advocate appearing for the appellant petitioners submitted that in the facts and circumstances of the case the writ petitioner opposite parties cannot complain before this court that the order of transfer has been passed by way of penalty and that penalty means some loss of service benefits or inconvenience as in the case of termination of service, reversion from officiating post and so on. In those cases it may be said that termination simpliciter in the garb of punishment is not permissible unless opportunity of being heard is given. So also in the case of reversion from officiating post if made mala fide the question of application of the principle of natural justice would apply. It cannot be contemplated that an order of transfer made in exigencies of public service has to be passed after giving an opportunity of being heard. Such a situation is not contemplated nor permissible according to the submission of Mr. Roy. Mr. Roy further submitted that the order of transfer has to be judged on the basis of surrounding circumstances and that the expression 'in the interest of public service' vary from case to case. No hard and fast rule can be laid down as to what 'in the interest of public service' or 'in exigencies of public service' are. These expressions are wide enough to cover the cases like this. Lastly it was submitted by Mr. Roy that in the instant case there will be no loss of emoluments and no loss of status and that all the facilities which the writ petitioner opposite parties were enjoying in the present posting will be enjoyed in the Howrah jail which is few miles away from the present place of posting and which is within the Presidency Circle.
11. Mukherjee, learned Advocate appearing on behalf of the writ petitioner opposite parties submitted that in the instant case in view of the averments made in the stay application giving reasons for such transfer it may be held that the order of transfer was passed mala fide as the mala fide was the very foundation of the order of transfer. It was further submitted by Mr. Mukherjee that immediately after the order of transfer was passed certain news items were published in the daily newspapers from which it was evident that the order of transfer was passed on the basis of certain allegations against the writ petitioner opposite parties. In this connection Mr. Mukherjee relied upon the decision of the Supreme Court in the case of Samant N. Balakrishna v. George Fernandaz and Ors. reported in : [1969]3SCR603 wherein the Supreme Court held that a news item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It was further held that a fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. Relying upon the aforesaid decision it was submitted by Mr. Mukherjee that in the instant case the newspaper report is supported by the subsequent averment made in the application for stay filed by the appellant State. Reliance was also placed on another decision of the Supreme Court in the case of Ebrahim Sulaiman Sait v. M.C. Mohammed and Anr. reported in : [1980]1SCR1148 wherein it was held that the report of a speech even though not fully reported appearing in a newspaper can be relied on to consider whether it constitutes corrupt practice falling within the meaning of the Representation of the Peoples Act especially when the maker of the speech has admitted that the reporter's version of the speech does, more or less, tally with the views expressed by him in the meeting. Accordingly it was submitted that in the instant case when the newspaper report is fully corroborated subsequently in the application filed by the State in that event the court should certainly look into and rely upon the newspaper report. Mr. Mukherjee further submitted that the writ petitioner opposite parties were entitled to relief on the basis of the writ application inasmuch as the writ petitioners have come before this Court with a clear case of violation of the provisions of the Jail Code as it was alleged that the police officials were entering into the jail in violation of the provisions of Rule 688A of the Jail Code by entering into the Jail without obtaining the permission from the Commissioner of Police and by not signing the register maintained in this behalf. Further it was alleged that the police officers converted the jail into police custody. According to Mr. Mukherjee the writ petitioners apart from protecting their own legal rights are entitled to pouse the cause of the prisoners who are subjected to illegal activities. Reliance was also placed to the provisions of Rule 308 of the Jail Code wherein it is provided that no Warder shall remain at any Central Jail longer than five years and that these five years shall be construed as the period within which no transfer could be made. Mr. Mukherjee further submitted that when there are allegations against the writ petitioner opposite parties that they were interfering with the rights of the prisoners and were harassing and/or causing difficulty to the prisoners in that event it is a fit and proper case where the 'said two prisoners should be transfered to some other jail as has been done by the learned trial Judge in order to protect their rights. Mr. Mukherjee further submitted that when the order of transfer has been passed on the basis of certain reports and allegations the same could not have been passed without drawing up proceedings and/or giving an opportunity of being heard.
12. The Supreme Court in the case of Sachidanand Pandey v. State of West Bengal reported in : [1987]2SCR223 held that the petitioners in the public interest litigation must inspire confidence in court and among the public. They must be above suspicion. Supreme Court in this case warned against unrestricted flow of public interest litigation in the Court and held that it is necessary to lay down clear guidelines and to outline the correct parameter for entitlement of such petition. If the courts do not restrict the free flow of such cases in the name of public interest litigation the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions. It is only when courts are apprised of gross violation of fundamental rights by group or a class action or when basic human rights are invaded and when there are complaints of such acts as shock the judicial conscience that the courts should leave aside procedural shackle and hear such petitions and extend its jurisdiction under all available provision for remeding the hardship and miseries of the needy, the under-dog and neglected. Private and personal interest cannot be allowed to assume the character of public interest litigation. Public interest litigation must be for espousing a public cause when there is allegations of violation of fundamental rights of people who are poor, ignorant of their legal rights and have no means to approach the court. It must be by a public spirited person. It should not be designed to subserve the private interest of some other person. It appears from the pleadings in the writ petition that admittedly the writ petitioners had unauthorised communication with the undertrial prisoners and the alleged conversation between them made it public. Particularly it was alleged that the said accused persons have allegedly disclosed that they were police informers and that they are under the pay roll of the police and that if these statements are allowed to be raised in the writ application publicly in that event that will have far reaching effect of prejudicing the trial in the TADA court. Further under the provisions of Regulations 181 and 182 of the Jail Code the writ petitioners cannot have any unauthorised communication with any prisoner whatsoever concerning the jail and that they were prohibited from making unnecessary conversation with any prisoner, or treat him with familiarity or discuss matters connected with the discipline or regulations of the jail with him or within his hearing. This was a restriction imposed under the Jail Code. But in the facts and circumstances of the case it appears that the writ petitioner opposite parties claim to be self-styled guardians of the said accused persons and even though the accused persons have not come forward before this Court, they are claiming to be espousing the cause of the accused persons so that they may be transferred to some other jail. In this connection reference may be made to the decision of the Supreme Court in the case of Simranjit Singh Mann v. Union of India reported in : 1993CriLJ37 wherein it was held that the writ petition by a third party challenging the conviction and sentences awarded to certain convict on the ground of violation of their fundamental right was held not maintainable even though the petitioner claimed to be a leader of the recognised political party and claimed to have interest in future of the convicts. It was held that such third party can be allowed to challenge the conviction only if they are under some disability recognised by a law and not otherwise. In the affidavit-in-reply before us it was stated by the writ petitioners that the said Pannalal Jaysorara and Md. Gulzar have been expressing their remorse for making false allegations against innocent persons attributed to them by the Lalbazar Police and for their inability to retract their purported confessional statements for threat by the police as they are informers of police and telling that they would commit suicide if they are handed over to those police officers by the Superintendent, Presidency Jail in the manner stated above. We are of the view that the purpose of the writ application was not for the interest of those accused persons but to subserve the interest of some third party and that the purpose does not appear to be bona fide at all.
13. The Deputy Commissioner, Detective Department and the Assistant Commissioner, Detective Department have affirmed affidavits denying all the allegations made against them. Accordingly, it is well-settled principle that when mala fide is alleged the onus of proof of mala fide is on the person who alleges. Allegations of mala fide must be supported by acceptable evidence. Allegation must be specific, pointed and it should not be wide in nature and bereft of details as held by the Supreme Court in the case of Hemlall Vandari v. State of Sikkim reported in AIR 1987 SC 765. On the basis of the admitted facts the question is whether this writ petition was maintainable or not. It is an established principle that one must come to the writ court with clean hands. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. Before granting the writ the court may and should look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the sorrounding facts and circumstances. As the issuance of the writ lies in the sound discretion of the court, the court has the right to consider the real, although indirect, cause of the action. So Mandamus may be refused where it is not sought in good faith as it is not a right. Mandamus could not be issued in a case where it is moved for advancing the private interest of another person. The court always retains discretion to withhold the remedy where it would not be in the interest of justice to grant it. Supreme Court in the case of Bombay Municipality v. Advance Builders reported in : [1972]1SCR408 observed that the writ of Mandamus is not a writ of right but is as a rule, a matter for the discretion of the court. In Century Spinning and Manufacturing Co v. Ullahas Nagar Municipal Council reported in : [1970]3SCR854 the Supreme Court held that the court may decline to entertain writ petition if the petitioner makes a claim which is frivolous, vexatious or prima facie unjust or may not appropriately be tried in a petition involving extraordinary jurisdiction. Even in cases the applicant for relief has undoubted legal right for which Mandamus is the appropriate remedy, the court may for the exercise of a wide judicial discretion still refuse relief. In the instant case something more appears. The xeorx copies of the jail records have been made annexures to the writ petition for the purpose of supporting the case of the writ petitioner opposite parties. The writ petitioner opposite parties are members of a disciplined force who are charged with the duty of keeping in judicial custody of the prisoners for maintaining law and order in the society. It is very sacred duty imposed upon them. This duty of jail staff is very sensitive and should be above board. In the facts and circumstances of the case it appears that transfer of accused persons cannot be made behind the back and without their knowledge when they do not want it and further the TADA Court who is in seisin of the case has only jurisdicion to transfer the accused persons from one jail to another because the accused persons are under the supervision and control of that court. It cannot be done at the instance of a third party who claims to be the self styled guardian of the accused persons. From the facts and circumstances of the case it also appears to us that the writ petitioner opposite parties are not only interested to challenge the order of transfer but they are also interested to take the accused persons out of the said jail in the some oblique prepare and further the writ petitioner opposite parties have played a very serious role and that unauthorised communication with the prisoners and making it public will have an effect of prejudicing the trial in the TADA court which is very grave and serious. The alleged conversation made with the accused persons that they were police informers would create an impression upon the Court that they were police informers and acting under the dictates of the police in that even the confessional statements will lose weight and that will have serious impact on the pending case in the TADA Court.
14. From the facts and circumstances of the case it appears to us that the whole thing may be apart of a designed game. But at this stage it is not appropriate for us to make any final pronouncement. It is not appropriate for the court to interfere in any matter to suppress one mischief only at the cost of establishing another is just as bad or even worse. Court will be reluctant to pass any order to obviate one danger at the cost of creating another danger of serious nature. On the basis of the admission made in the writ petition it appears that the writ petitioners have violated the Jail Code at will. Regarding the merit of the transfer several decisions have been cited but this question has been concluded in the case of State of Punjab and ors. v. Joginder Singh Dhatt reported in : AIR1993SC2486 wherein the Supreme Court has held that it is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the fact of it, no injustice was caused. In the instant case true the writ petitioner opposite parties have been, transferred from one place to another but the distance is very little and no inconvenience was caused and practically no injustice has been caused. Further it appears to us that the expression 'in the interest of public service' cannot be construed narrowly and the expression is wide enough to cover a case where the authority concerned feels that for the purpose of maintaining discipline and for the purpose of protecting the interest of on accused persons if any of the Warders is found to be acting in violation of the Jail Code and in that event if he is transferred we do not find any reason to hold that the transfer is by way of punishment for which they were entitled to hearing and that before making such transfer a disciplinary proceeding has to be drawn up and concluded. Normally an order of transfer can only be challenged on the ground that malice was the foundation of the order. There may be malice in fact or in law. Ordinary grounds available for challenging the validity of an order of transfer is that the order of transfer was passed for the purpose of accommodating another person or in other words, only to confer some unjust benefit to someone one cannot be transferred in the exegiens of public sence. Secondly, an order of transfer cannot be made with malicious intention. A malicious intention may occur when the maker of the order intends to feed fat his own grudge or for the purpose of taking revenge on a person for what he has done in the discharge of his duties. In the instant case, the order of transfer cannot be said to have been made not in the exigency of the public service or in the public interest. The expression 'exigency' means 'demand, want, need, imperatieness. Something arising suddenly out of current events; any event or occasional combination of circumstances, calling for immediate action or remedy; a pressing necessity; a sudden and unexpected happening or an unforseen occurrence or condition'-(See BLACK'S LAW DICTIONARY, FIFTH EDITION). So 'exigency' of public service clearly means that want or need of the administration and if any situation arises calling for immediate action or remedy, the authorities can take action in the exigency of public service. In the fact and circumstances of the case, the appellant has disclosed the reasons for such transfer which clearly comes within the scope and ambit of the expression 'exigency'.
15. Accordingly, we are of the view that when there was a pressing demand or need of the administration calling for immediate action and if on this fact order of transfer has been made, the same cannot be said to be not in the exigency of public service. It is not a case where State has suppressed the real state of affairs from this court. State has come forward and disclosed all the materials before the Court. The experssion 'mala fide' means 'bad faith.' It means something opposite to bona fide. Bad faith means the opposite of 'good faith,' generally implying or involving actual or contsructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Term 'bad faith' is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliguity; it is different from the negative idea of negligence in that it contemplates a state of mind affimatively operating with furtive design or ill will.'-See Black's Law Dictionary, 5th Edn.
16. On the basis of the facts of the case as disclosed by the affidavits it is clear to us that the order of transfer of the writ petitioner was not mala fide at all and that it must be held that the same was passed bona fide and in the interest of the administration of the said Jail authority. The Jail authorities did no suppress on anything nor tried to mislead the Court. There was no ill motive or bad faith on the part of the authorities concerned.
17. In the instant case, admittedly by a writ application the writ petitioner wanted to get the accused persons transferred in a manner which was not only highly improper but amounts to interference with the proceedings of the TADA Court in whose judicial custody the accused persons were kept in the said jail. This is a case where the said two accused persons have lodged serious complaint against the writ petitioner before the TADA Court and that it may be as a counter blast that the writ petitioner has come forward before the court making certain allegations against the police authorities by which the said accused persons were sought to be transferred from that jail to some other jail. We are also of the view having regard to the allegations and statement made in the writ application and having regard to the fact that these two accused persons are accused on a very serious case which is known as Bowbazar bomb blast which resulted in a total devastation of the area situated at the heart of the city and that this court can take judicial notice of this fact and that it is designed to stifle the case pending before the TADA. Court. The said Bowbazar bomb blast has not only taken away many lives and caused damage to the property but also has caused indescribable misery to hundreds of people and people have become panicky over such an incident which never occurred in the city before. Considering the serious nature of the case pending before the TADA Court and considering the facts and circumstances of the case we are of the view that the writ application is a gross abuse of the process of the court in so far as it intends to interfere or stifle the TADA Court is concerned. Something has been disclosed in his Court alleged to have been made by the said accused persons without making them parties and that if behind the back and without the knowledge of those parties such statements are considered in that event that would be interfering with the administration of justice in a manner which is highly illegal. Writ court should not exercise any power or jurisdiction when it pertains to a matter which is pending before the TADA Court or in any other criminal court. We are of the view that the order of transfer has been made in the interest of the jail administration. It cannot be said that the authorities concerned have not acted bona fide and/or fairly. In the pecular circumstances of the case, it may be said that what the jail authorities have done was for upholding the cause of justice. The role of the court is to determine the legality of the administrative action. In the instant case, we do not find any reason whatsoever to hold that the administrative action that has been taken by the authorities concerned in the peculiar circumstances of the case was improper or unfair and/or invalid in any ground whatsoever. The Division Bench of the Madras High Court considered the case where a disciplinary proceeding was started and transfer order was made so that the employee concerned might be put out of the place. In the instant case we are of the view that it is within the domain of the employer to decide what course of action is to be taken on the basis of admitted facts. This court cannot set aside the order of transfer on the ground that it has been passed without giving an opportunity of hearing and it has been passed by way of punishment inasmuch as transfer is not within the range of punishment and giving of punishment does not include the power of transfer from one place to another. In the instant case if the jail authorities feel that for the administrative exigencies the writ petitioner opposite parties should be transferred in that event it cannot be said that the transfer order was vitiated by malice. Lastly the allegations were made against the police authorities but the order of transfer was passed by the Superintendent of the Presidency Jail. There is no specific allegation and as such it appears that there is no allegation of mala fides against the authorities concerned who have passed the order of transfer. So it could not be established by any stretch of imagination that the foundation of the order of transfer was actuated by malice or bad faith. We are of the view that the Court has power to call for the records but that is an extreme move. Ordinarily at the instance of the petitioner the Court should not call for the records for the purpose of searching out the files in order to substantiate the allegations of mala fides made in the petition in view of the fact that the onus to prove such mala fides lies upon the petitioner. It is only when the other sides come and after affidavits are filed the court may ask the parties to produce the records for good and sufficient reasons. In the instant case we do not find any justification to direct the appellants herein to produce the entire records as has been done by the order dated 10th November, 1993 passed by the learned trial Judge and we are also of the view that the learned trial Judge while passing the interim order of injunction on 12th November, 1993 has made categorical finding that in view of the provisions of Rule 308 of the West Bengal Jail Code the writ petitioner was entitled to continue in his present posting for five years as the petitioner has completed his service in his present posting for about three years only is not correct. Rule 308 puts out the limit for five years and that does not confer any right to a Warder to remain in a paricular jail for a period of five years and it does not mean that he could not be transferred before five years. We are of the view that in the facts and circumstances of the case the learned trial Judge by way of interim order was wrong in directing the appellant nos. 2 and 3 to transfer the said two under-trial accused persons, namely, Pannalal Jaysoara and Md. Gulzar from Alipore Presidency Jail to Dum Dum Central Jail, in other words, putting the accused persons beyond the jurisdiction of the Calcutta police.
Accordingly, considering the facts and circumstances of the case but without going into the merits of the case, we are of the view that the interim order dated 12.11.93 passed, is set aside. In view of the order we are passing today no useful purpose will be served by keeping the appeal pending. Accordingly, the appeal is treated as on day's list and both the appeal and the application are allowed without any order as to costs.
Oral prayer for stay of this order made by the learned Advocate appearing on bealf of the respondent is refused.
Facts and circumstances being this order shall also govern the other appeal, which is heard along with this appeal, being F.M.A.T. No. 3795 of 1993.
Let xerox copy of this order be given to the learned Advocates for the parties on the usual undertaking.